Due Diligence and Overlooked Evidence in the South China Sea Arbitration: A Note

Abstract

In the South China Sea Arbitration, the Tribunal decided that China had not breached the due diligence obligation to protect and preserve the marine environment under Articles 192 and 194(5) of the United Nations Convention on the Law of the Sea concerning Chinese fishers fishing with explosives, but that China had breached the same obligation regarding Chinese fishers harvesting endangered species. This article looks at how the Tribunal interpreted and applied the due diligence obligation and argues, from a Chinese perspective, that there were facts overlooked by the Tribunal that China could have presented to counter the evidence of the Philippines, which might have been enough to affect the decision on destructive fishing had China participated in the Arbitration.     

When Good Lawyers Write Bad History: Unreliable Evidence and the South China Sea Territorial Dispute

The recent award by an arbitral tribunal in a case brought by the Philippines against China gives lawyers reason to reexamine the historical evidence put forward by claimants in the South China Sea disputes. While the Tribunal was barred from considering territorial or boundary questions, it did cast doubt on the historical narrative rule that China has asserted in support of its claims. Fresh evidence from other sources also suggests that discussions of these matters need to move beyond arguments put forward in a small number of papers published more than thirty years ago. A close examination of the references used in those papers shows that they relied upon highly partisan Chinese sources. Recent historical research has produced new facts about the development of the competing territorial claims in the South China Sea, but international legal discourse has yet to take these findings into account. This article examines some of the key works in the field and calls for them to be reassessed and for future discussion of the disputes to be based upon verifiable and contextualized evidence rather than on nationalist assertions.     

Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?

This article examines the conclusion in the decision of the Arbitral Tribunal in the South China Sea Case that straight baselines may not be used to enclose off-shore archipelagos unless they meet the criteria set out in Articles 46 and 47 of the Law of the Sea Convention.     

Universalizing the Law of the Sea in the South China Sea Dispute

This article argues that a resolution of the maritime disputes in the South China Sea must be based upon a universalist framework where the maritime interests of the world are upheld. The article discusses the universalist framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the universalist approach taken by the Tribunal on 12 July 2016 in the South China Sea Arbitration regarding the extinguishment of a state's “exceptionalist” maritime claims and the adoption of strict criteria for the characterization of features at sea.     

Taxonomic review ofapristurus platyrhynchus and related species from the pacific ocean (chondrichthyes, carcharhiniformes, scyliorhinidae)

Apristurus platyrhynchus and four related species were reviewed taxonomically.A. sibogae from Indonesia andA. micropterygeus from the South China Sea were valid species.A. verweyi from the Philippines andA. acanutus from the South China Sea were junior synonyms ofA. platyrhynchus. A. platyrhynchus was re-described, and its new biological information was provided.     

The Interpretation of Article 121(3) of UNCLOS by the Tribunal for the South China Sea Arbitration: A Critique

The interpretation of Article 121(3) of the 1982?U.N. Convention on the Law of the Sea (UNCLOS) was a key part of the Sino-Philippine Arbitration on the South China Sea Award issued in July 2016. This article uses the principles of treaty interpretation codified in Article 31 of the 1969 Vienna Convention on the Law of Treaties to evaluate the interpretation process. The Tribunal paid little attention to the text such as “rocks” in the plural form and overlooked the context of Article 121(3). The travaux préparatoires identified by the Tribunal was based on materials of doubtful weight.     

Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration

Historic titles and historic rights have been a complicated issue in the law of the sea both conceptually and practically. The South China Sea Arbitration between the Philippines and China raised important issues regarding the contemporary relevance and validity of historic claims, and the relationship between the Law of the Sea Convention and historic rights. This articles examines historic rights and historic titles in the law of the sea in the light of the South China Sea Arbitration and evaluates the contribution of the Tribunal's Awards to the clarification of these concepts.     

The Spratly Islands as a Single Unit Under International Law: A Commentary on the Final Award in Philippines/China Arbitration

This article addresses the question whether Spratly Islands is “in law a unit … [such] that the fate of the principal part may involve the rest” (Max Huber). The question was pivotal in the Philippines/China Arbitration. The Tribunal addressed it from the perspective of the archipelago provision in the Law of the Sea Convention. This article approaches the question from the perspective of the Japanese Peace Treaty.     

Oil interests and the law of the sea: The case of the philippines

Abstract

In March 1976, after almost eighty years of unsuccessful oil exploration in the Philippines, a significant quantity of oil was discovered offshore and northwest of the island of Palawan in the South China Sea. Subsequent development of a commercially producing oil field there has stimulated renewed interest and investment in the development of her indigenous oil potential, both offshore and onshore.

National interest in oil has become so great that the Philippines has intensified exploration efforts in highly disputed areas of the South China Sea, based on minimal geological evidence of hydrocarbon potential there, and despite strong protests from the other nations that hold conflicting territorial claims in that region. These efforts have been accompanied by extension of Philippine claims, occupation, and control over marine territory and resources in the disputed area. The Philippine bases for these actions are reviewed and several scenarios are explored as to how the Philippine oil interests may influence the resolution of boundary conflicts thus created.     

Longtail tuna Thunnus tonggol (Bleeker, 1851) shows genetic partitioning across,but not within,basins of the Indo‐Pacific based on mitochondrial DNA

Genetic stock structure is atypical in tuna species, with most species demonstrating geographically‐broad, panmictic populations. Here, genetic data suggest a distinct pattern for Thunnus tonggol across the Indo‐Pacific region. The genetic variation in the coastal tuna T. tonggol sampled from across the South China Sea was examined using the highly variable mitochondrial DNA displacement loop (D‐loop) gene region. One hundred and thirty‐nine specimens were sampled from four locations in Indonesia, Vietnam and the Philippines. Phylogenetic reconstruction of genetic relationships revealed no significant ?_ST statistics and hence no population structure within the South China Sea. However, subsequent analysis with sequence data from coastal northwest India infers discrete genetic stocks between the Indian Ocean and the South China Sea. Consistent with previous genetic analyses of tuna species in the Indo‐Pacific, the findings in this study infer no population structure within each basin, but rather show a significant partitioning across the wider region. Furthermore, these results have implications for the management of the commercially valuable Thunnus tonggol across national boundaries, and thus requiring collaboration among countries to ensure its sustainable use.     

Some problems concerning the delimitation of the maritime boundary between the republic of china (Taiwan) and the Philippines

Abstract

This paper analyzes the issue of how the relevant provisions of the 1982 United Nations Convention on the Law of the Sea can be applied to the delimitation of the maritime boundary in the Bashi Channel between Taiwan and the Philippine island of Luzon and in the South China Sea area. It concludes that the Philippines’ extensive territorial sea claim based on the 1898 U.S.‐Spanish Peace Treaty can hardly find any basis in customary rules of international law and the U.N. Convention and, therefore, should be disregarded in such delimitation. On the other hand, the archipelagic principle provided in the Convention can be applied here. With respect to rules of delimitation, it suggests that the equitable principle of the delimitation of the continental shelf, enunciated in the Anglo‐French Continental Shelf Arbitration (1977) and the Tunisian‐Libyan Continental Shelf Case (1982), can mutatis mutandis be applied to the delimitation of the maritime boundary. As an interim solution, the maritime boundary of certain disputed islands in the South China Sea should be declared neutral zones open to nationals of both countries.     

The July 2016 Arbitral Award,Interpretation of Article 121(3) of the UNCLOS,and Selecting Examples of Inconsistent State Practices

This article discusses the insufficient consideration of the role of state practice in the interpretation and implementation of Article 121(3) of the UNCLOS by the Arbitral Tribunal in the South China Sea Arbitration Case. The article argues that the Tribunal's view on the “threshold” established and its conclusion that there was no evidence that an agreement existed based upon state practice on the interpretation of Article 121(3) are open to question.     

Conservation of reef corals in the South China Sea based on species and evolutionary diversity

The South China Sea in the Central Indo-Pacific is a large semi-enclosed marine region that supports an extraordinary diversity of coral reef organisms (including stony corals), which varies spatially across the region. While one-third of the world’s reef corals are known to face heightened extinction risk from global climate and local impacts, prospects for the coral fauna in the South China Sea region amidst these threats remain poorly understood. In this study, we analyse coral species richness, rarity, and phylogenetic diversity among 16 reef areas in the region to estimate changes in species and evolutionary diversity during projected anthropogenic extinctions. Our results show that richness, rarity, and phylogenetic diversity differ considerably among reef areas in the region, and that their outcomes following projected extinctions cannot be predicted by species diversity alone. Although relative rarity and threat levels are high in species-rich areas such as West Malaysia and the Philippines, areas with fewer species such as northern Vietnam and Paracel Islands stand to lose disproportionately large amounts of phylogenetic diversity. Our study quantifies various biodiversity components of each reef area to inform conservation planners and better direct sparse resources to areas where they are needed most. It also provides a critical biological foundation for targeting reefs that should be included in a regional network of marine protected areas in the South China Sea.     

Reflections on the Interpretation and Application of Article 121(3) in the South China Sea Arbitration (Merits)

The 2016 South China Sea Arbitration Award provided a detailed review of the interpretation of Article 121(3) of the U.N. Convention on the Law of the Sea. According to the Tribunal, Article 121(3) performs a preventive function by disabling tiny features from unfairly generating enormous entitlements to maritime space that does not serve the local population. This provision also contributes to safeguarding of the Common Heritage of Mankind. The Tribunal's interpretation seems to reflect development of the law of the sea toward protection of the common interests of the international community. However, since the Tribunal's interpretation is not anchored in state practice and the jurisprudence, whether the interpretation can be generalized needs careful consideration.     

Modeled connectivity of <Emphasis Type="Italic">Acropora millepora</Emphasis> populations from reefs of the Spratly Islands and the greater South China Sea

The Spratly Island archipelago is a remote network of coral reefs and islands in the South China Sea that is a likely source of coral larvae to the greater region, but about which little is known. Using a particle-tracking model driven by oceanographic data from the Coral Triangle region, we simulated both spring and fall spawning events of Acropora millepora, a common coral species, over a 46-yr period (1960–2005). Simulated population biology of A. millepora included the acquisition and loss of competency, settlement over appropriate benthic habitat, and mortality based on experimental data. The simulations aimed to provide insights into the connectivity of reefs within the Spratly Islands, the settlement of larvae on reefs of the greater South China Sea, and the potential dispersal range of reef organisms from the Spratly Islands. Results suggest that (1) the Spratly Islands may be a significant source of A. millepora larvae for the Palawan reefs (Philippines) and some of the most isolated reefs of the South China Sea; and (2) the relatively isolated western Spratly Islands have limited source reefs supplying them with larvae and fewer of their larvae successfully settling on other reefs. Examination of particle dispersal without biology (settlement and mortality) suggests that larval connectivity is possible throughout the South China Sea and into the Coral Triangle region. Strong differences in the spring versus fall larval connectivity and dispersal highlight the need for a greater understanding of spawning dynamics of the region. This study confirms that the Spratly Islands are likely an important source of larvae for the South China Sea and Coral Triangle region.     

China's Nine Dotted Lines in the South China Sea: The 2011 Exchange of Diplomatic Notes Between the Philippines and China

Important events relating to the sovereignty dispute over the Spratly Islands have arisen by fits and starts since 2009, marking the start of a new phase in the legal battle over territorial and maritime claims in the South China Sea. While the exchange of legal arguments between the parties has gradually laid bare their maritime claims, much still remains shrouded in uncertainty. Among the obscure claims wanting clarification is China's infamous nine-dotted-line map, which in 2011 elicited a response and counterresponse between the Philippines and China. This article examines the maritime and territorial claims of the Philippines and China as revealed in the recent discord over the nine-dotted-line map.     

南海永兴岛的壁虎,兼记二新记录种

2017年12月对南海永兴岛的爬行动物进行了短期调查,发现3种壁虎科Gekkonidae动物,分别是截趾虎Gehyra mutilata、原尾蜥虎Hemidactylus bowringii和疣尾蜥虎H.frenatus。其中,截趾虎和原尾蜥虎为中国南海岛屿的新记录。     

从细胞色素b基因序列探讨笛鲷属的分子系统发生关系

测定了9种中国南海的笛鲷属鱼类的细胞色素b基因的部分序列,结合来自GenBank中1种分布于菲律宾和9种分布于美国大西洋的笛鲷属鱼类的相应同源序列,用邻接法和最大简约法构建分子系统树。结果显示:红鳍笛鲷(Lutjanuserythropterus)与红笛鲷(L.sanguineus)之间的同源序列碱基差异百分率只有0.32%,支持二者是同种异名的观点;中国南海的笛鲷属鱼类间的平均碱基差异要高于美国大西洋笛鲷属鱼类。在MP和NJ树中,美国大西洋笛鲷表现为亲缘关系较近,来源于中国南海的笛鲷鱼类相对集中在树的基部,分歧较大。这与所研究的笛鲷地理分布和地理隔离基本相一致,同时也说明中国南海笛鲷分化较早并且分歧较大。     

Phylogeography of the flathead mullet Mugil cephalus in the north-west Pacific as inferred from the mtDNA control region

The population genetic structure and historical demography of the flathead mullet Mugil cephalus were investigated using the mtDNA control region (CR) sequences (909–1015 bp) of 126 individuals collected from seven locations in the north-west Pacific between 2005 and 2007. Haplotype diversity ( h = 0·9333–1·000) and nucleotide diversity (π = 0·0046–0·1467) varied greatly among the sampling locations. Phylogenetic analysis of the CR sequences indicated that M. cephalus in the north-west Pacific belongs to two highly divergent lineages (lineages 1 and 2), with the inferred population structure being closely associated with the distribution of both lineages. Two populations were identified, one from the East China Sea and the other from the South China Sea. The former samples were obtained from Taiwan and Qingdao of north China and associated with lineage 1 haplotypes. The latter samples were collected from the Philippines, Pearl River of South China and two samples from Japan, all of which were associated with lineage 2. Japanese samples from Okinawa and Yokosuka had different degrees of mixing between lineages 1 and 2. Historical demographic variables in both populations indicated that Pleistocene glaciations had a strong impact on M. cephalus in the north-west Pacific, resulting in a recent demographic decline of the East China Sea population but in demographic equilibrium for the South China Sea population. Japan appears to be a contact zone between lineages 1 and 2, but it may also be indicative of coexistence between resident and migratory populations. Further global studies are required to clarify the taxonomic status of this cosmopolitan species.     

Population Structure and Genetic Variability of Six Bar Wrasse (<Emphasis Type="Italic">Thallasoma hardwicki</Emphasis>) in Northern South China Sea Revealed by Mitochondrial Control Region Sequences

The genetic relationships among northern South China Sea populations of the six bar wrasse (Thallasoma hardwicki) were investigated. Fish collected from the Solomon Islands were used for geographic comparison. In 1998 and 1999, a total of 100 fish were sampled from 6 localities of the northern South China Sea and 3 localities of the Solomon Islands. Genetic variations in DNA sequences were examined from the first hypervariable region (HVR-1) of the mitochondrial control region, as amplified by polymerase chain reaction. High levels of haplotypic diversity (h = 0.944 ± 0.0016, = 0.0224 ± 0.01171) in the HVR-1 region of the mitochondrial control region of T. hardwicki were detected. This yielded 94 haplotypes that exhibited a minimum spanning tree with a starburst structure, suggestive of a very recent origin for most haplotypes. Neutrality tests indicated that the pattern of genetic variability in T. hardwicki is consistent either with genetic hitchhiking by an advantageous mutation or with population expansion. Partitioning populations into coherent geographic groups divided the northern South China Sea samples (_CT = 0.0313, P < 0.001) into 3 major groups: a north-central group composed of northwestern Taiwan and northern Vietnam; a southwestern group containing southern Vietnam; and a southern group including the central Philippines. These results are in concordance with mesoscale boundaries proposed by allozyme markers, thus highlighting the importance of identifying transboundary units for the conservation and management of fisheries in the South China Sea.